Thomas Joseph Goudreau v. Katherine Lynn Goudreau ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Annunziata and Agee
Argued at Alexandria, Virginia
THOMAS JOSEPH GOUDREAU
MEMORANDUM OPINION * BY
v. Record No. 2720-00-4 JUDGE G. STEVEN AGEE
JULY 10, 2001
KATHERINE LYNN GOUDREAU
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
R. Terrence Ney, Judge
Carl P. Horton for appellant.
Christopher W. Schinstock (James Ray
Cottrell; Gannon, Cottrell & Ward, P.C., on
brief), for appellee.
Thomas J. Goudreau (father) appeals the October 24, 2000
decision of the Fairfax County Circuit Court denying his motion
concerning certain visitation rights to his two children under a
prior Custody Order dated June 29, 1999 (the Custody Order).
Father alleges the trial court erred in its interpretation of
the Custody Order's plain language regarding "extended
weekends." For the following reasons we agree with father and
remand this matter back to the trial court for consideration
consistent with this opinion.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
BACKGROUND
The Custody Order provided Katherine Lynn Goudreau (mother)
with sole custody of the parties' two minor children and leave
to relocate the children to Utah. Prior to the Custody Order,
the parties shared custody of their children in Virginia.
Mother, however, made plans to remarry and relocate to Utah in
2000. On mother's petition, and over father's objections, the
Fairfax County Circuit Court, by Judge Brown, issued the Custody
Order.
The Custody Order granted father visitation with the
children during the school year under Sections 2A and 2B, which
differentiated visitation before and after June 6, 2000.
Incorporated by reference to the Custody Order was an attached
exhibit styled "Proposed Custodial Access" (Access Plan), which
provides in pertinent part:
Proposed Custodial Access
[Father] to have children for Spring Break
every year.
[Father] and [mother] to alternate
Thanksgiving holidays with [father] having
the children [in 2000] . . . .
[Father] and [mother] to split the Christmas
vacation with the children with [father]
having the children on Christmas [in 1999]
. . . .
[Father] to have the children over the
extended weekends throughout the school
year.
* * * * * * *
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[Father] may visit the children when he is
in Utah not more than one weekend/month when
not otherwise scheduled for a visitation
during that month excluding the summer
vacation period.
* * * * * * *
The proposed schedule for the remainder of
1999 through the 2000 school year is as
follows:
[A breakdown, per the 1999-2000 school
calendar, of the parties' allotted times
with their children was listed through the
end of school on June 6, 2000].
Father requested clarification from the trial court when
the parties could not agree as to the Custody Order's
application to November 2000 when there were several extended
weekends, in addition to father's scheduled Thanksgiving
visitation period. Father interpreted the language of the
Access Plan "to have the children over the extended weekends
throughout the school year" to mean exactly that. Mother, who
drafted the plan, argued the intent was only to allow father
visitation one weekend a month and for November 2000 that was
the Thanksgiving weekend.
The trial court, with Judge Ney presiding, reviewed the
Custody Order and the transcript from a January 20, 2000 hearing
before the court, Judge Roush presiding. There, on January 20,
2000, the parties argued over their rights under the Custody
Order as to exchanging the children and the father's rights to
information on the children. As to the provision on extended
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weekends, the trial court interpreted the Custody Order as
follows:
I think that the language ["father] to have
children over the extended weekends
throughout the school year,["] is to express
the general understanding of the parties
that for months that have extended weekends,
those will be the weekends selected. And I
think that the proposed schedule which then
falls out, which is then set out which
[father's counsel] pointed out, is then
referred to on page 329 of [mother's
previous] testimony . . . states that this
would be the schedule for the following
year, this is the plan schedule. I think
that [what the] schedule demonstrates is
that [father] is going to have these
children probably once a month, because
almost every month there's a provision for
him to have the children, but most
importantly, the time for each of those
weekends is the long weekend . . . . I don't
read the general language with regard to
extended weekends beyond one long weekend a
month. I think that's the whole intention
of the parties, and I think it's reflected
in the specifics of the schedule.
The trial court then ruled that the "plain language is modified
by the specifics of the weekends that are set out on a month by
month basis" and denied father's motion by the October 24, 2000
order.
ANALYSIS
Court orders are subject to the same rules of construction
that apply to other written instruments. See generally Shultz
v. Hansbrough, 76 Va. 817 (1882). When a trial court applies
the unambiguous language of an order, the sole issue on appeal
is a question of law "which can readily be ascertained by this
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Court." Fry v. Schwarting, 4 Va. App. 173, 180, 355 S.E.2d 342,
346 (1987). Upon our review of the October 24, 2000 order, we
find error, as a matter of law, in the trial court's
interpretation of the plain language of the Custody Order.
The Custody Order clearly states that beginning on June 6,
2000, father is entitled to the access reserved to him in the
attached plan including: "[Father] to have children over the
extended weekends throughout the school year . . . ." The
extended weekends provision contains no limiting terms and
neither does the main body of the Custody Order nor the other
provisions of the Access Plan. This provision plainly and
without reservation provides father with all the extended
weekends in the school year except those otherwise specifically
covered by other direct provisions of the Custody Order:
Thanksgiving and Christmas. Yet, the trial court, while
recognizing the unambiguous meaning, accepted mother's argument
to search for another interpretation by drawing analogies from
the specific dates for the 1999-2000 school year in order to
change the clear wording of the Custody Order. The trial court
went on to say that the Thanksgiving weekend was an extended
weekend when it was assigned to father and that would be the
only weekend father could have in November. We find these
conclusions plainly wrong based on the clear and unambiguous
language of the Custody Order.
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The extended weekend provision is clear on its face, and it
is not limited by the date specific 1999-2000 school year
visitation provisions in the Access Plan. While the specific
provisions for the 1999-2000 school year likely override the
general provisions of the Custody Order as to that year, that
argument is moot for periods after the 1999-2000 school year.
The assertion made in the dissent that the date specific
provisions of the Access Plan for the 1999-2000 school year are
made effective for subsequent years is not supported by the
plain language of the Custody Order or the record. To the
contrary, the Custody Order specifically differentiates between
periods before and after June 6, 2000.
Neither the Custody Order nor the incorporated Access Plan
contain language indicating the 1999-2000 date specific schedule
is illustrative of the "intent" of the Custody Order or that it
is to be applied for any purpose other than setting specific
visitation before June 6, 2000. Absolutely nothing in the
Custody Order provides a limiting "intent" factor to the plain
language of the extended weekend provision. To the contrary,
father's visitation rights are specifically divided in the
Custody Order between those occasions prior to June 6, 2000 and
those thereafter (Custody Order Sections 2A and 2B). If the
school years after the 1999-2000 year were to be governed by the
same distinct arrangements made in the 1999-2000 provision,
there would be no purpose to differentiate the years after June
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6, 2000, and would make subsections A and B of the Custody Order
superfluous. Also, the Thanksgiving holiday weekend, per the
provisions of the Access Plan, is not an extended weekend; it is
specifically differentiated from the other weekends in the
school year. To hold otherwise would require interpreting the
specific Thanksgiving provision to be an extended weekend when
it is father's year and not an extended weekend when it is
mother's year.
While mother may have intended the Custody Order to limit
father's visitation in or out of Utah to once a month, this
intent is not a part of the Custody Order which is complete and
unambiguous. Any ambiguity is created, not by the words of the
Custody Order, but rather, by mother's alleged intent asserted
to change the Custody Order in her favor. 1 Under the plain
language of the Custody Order, father is entitled to every
extended weekend during the school year, except where there are
specific provisions in the Custody Order to the contrary, i.e.
1
If there were any ambiguity on the face of the Custody
Order, we should construe it against mother as the scrivener.
"'[I]t is a familiar legal maxim that ambiguous contractual
provisions are construed strictly against their author.'"
Jennings v. Jennings, 12 Va. App. 1187, 1194, 409 S.E.2d 8, 13
(1991) (quoting American Realty Trust v. Chase Manhattan Bank,
222 Va. 392, 403, 281 S.E.2d 825, 831 (1981)). While this
Custody Order is not a contract, the Access Plan was
unilaterally created and written by mother on her motion for
sole custody upon her relocation to Utah, against father's
wishes. It would be a harsh result to allow mother to dictate
what the Custody Order may or may not provide.
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Thanksgiving and Christmas. There is nothing for the trial
court to interpret.
We reverse the October 20, 2000 trial court order denying
father's motion 2 and remand for further proceedings consistent
with this opinion.
Reversed and remanded.
2
The motion before the trial court on October 20, 2000 was
for clarification of the terms of the Custody Order entered June
29, 2000. There was no motion before the trial court, and
certainly no evidence, to modify the Custody Order. Any future
modification of this Custody Order will require notice,
opportunity to be heard, and a specific order.
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Annunziata, J., dissenting.
I respectfully dissent from the majority opinion and would
affirm the trial court's interpretation of the parties'
agreement.
Interpretation, the ascertainment of the meaning of
contractual words, is an essential element in considering the
legal effect of informal or formal agreements. 11 Samuel
Williston, A Treatise on the Law of Contracts § 30:1 (4th ed.
1999). Determining the intent of the parties is the lodestar of
interpreting a written document. Williston, supra, § 30:2; see
also Lenders Fin. Corp. v. Talton, 249 Va. 182, 189, 455 S.E.2d
232, 236 (1995).
While the court "should not undertake to construe away the
plain letter of a contract," Seward v. American Hardware Co.,
161 Va. 610, 625, 171 S.E. 650, 659 (1933), where the language
of a contract is susceptible of more than one construction, it
is the duty of the court to construe the language of the
agreement, pursuant to established rules of construction. Great
Falls Hardware Co. of Reston v. South Lakes Village Ctr.
Associates, 238 Va. 123, 125-26, 380 S.E.2d 642, 643 (1989). In
construing a contract the intention of the parties must be
ascertained from the entire instrument, as expressed in or
fairly implied in the writing. Bott v. N. Snellenburg & Co.,
177 Va. 331, 338, 14 S.E.2d 372, 374 (1941). All the provisions
of a contract shall be taken into consideration and reconciled,
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if possible, so that the true intent of the parties to the
contract may be ascertained. Id. at 339, 14 S.E.2d at 374;
Justice v. Stuyvesant Ins. Co., 265 F. Supp. 63, 65 (S.D. W.Va.
1967) ("A desire to effectuate the intentions of the parties
creates the necessity of looking to the constituent elements of
the contract, elucidating one by the other and reconciling them,
if practicable, to one common intent or design present to the
minds of the contracting parties."). "It is a well-recognized
principle that a contract should be construed as a whole,
thereby gathering meaning from its entirety and not from
particular words, phrases or clauses." Northern Virginia Sav. &
Loan Ass'n v. J.B. Kendall Co., 205 Va. 136, 142, 135 S.E.2d
178, 183 (1964); see also Roanoke Marble & Granite Co. v.
Standard Gas & Oil Supply Co., 155 Va. 249, 254, 154 S.E. 518,
520 (1930).
"In reconciling . . . provisions, any apparent
inconsistency between a clause that is general and broadly
inclusive in character, and a clause that is more specific in
character, should be resolved in favor of the latter."
Chantilly Constr. Corp. v. Commonwealth, 6 Va. App. 282, 294,
369 S.E.2d 438, 445 (1988); see also Bott, 177 Va. at 339, 14
S.E.2d at 374-75 ("[W]here there is a repugnancy, a general
provision in a contract must give way to a special one covering
the same ground."). In construing contract documents as a
whole, the court will not treat any word or clause as
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meaningless if any reasonable interpretation consistent with the
other portions of the contract can be ascribed to it. The
contract must be construed so as to give effect to every part of
it, as parties are not presumed to have included a provision of
no effect. Ross v. Craw, 231 Va. 206, 214, 343 S.E.2d 312, 317
(1986); see also First Am. Bank of Virginia v. J.S.C. Concrete
Constr., Inc., 259 Va. 60, 69, 523 S.E.2d 496, 501 (2000).
Thus, "when two provisions of a contract appear to be mutually
conflicting, they should be reconciled if a reasonable basis for
reconciliation is afforded by the instrument's language." First
Am. Bank, 259 Va. at 69, 523 S.E.2d at 501.
In reaching its conclusion in this case, the trial court
found:
[T]he language, "Tom to have children over
the extended weekends throughout the school
year," is to express the general
understanding of the parties that for months
that have extended weekends, those will be
the weekends selected [for visitation with
Tom]. And I think that the proposed
schedule which then falls out . . . is the
plan schedule. . . . I don't read the
general language with regard to extended
weekends to be a blanket right for long
weekends beyond one long weekend a month. I
think . . . the whole intention of the
parties . . . [is] reflected in the
specifics of the schedule.
A close review of the provisions in question supports the
trial judge's interpretation of the clauses at issue. The
visitation schedule for the father, or what the parties
denominated his "access" to the children, was set forth in a one
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page proposal, drafted by the mother, and adopted, with certain
modifications, by the trial court. The plan is drafted in two
parts. It begins with general provisions addressing issues such
as which parent is to have the children during spring break,
Thanksgiving, Christmas and summer vacation. 3 Among those
provisions is found the language in which the current dispute is
rooted, to wit, "[father] to have children over the extended
weekends throughout the school year."
3
The first half of the document entitled "Proposed
Custodial Access" provided the following:
Tom to have children for Spring Break every
year.
Tom and I to alternate Thanksgiving holidays
with Tom having the children on the even
years and Katherine during the odd years.
Tom and I to split the Christmas vacation
with the children with Tom having the
children on Christmas during the odd years
and Katherine during the even years.
Tom to have children over the extended
weekends throughout the school year.
Summer vacation to be evenly divided with
Tom having the children during the first
half of the summer during the odd years and
Katherine during the even years. The summer
vacation period will be defined as the first
weekend after school is out to the weekend
prior to the start of school.
Tom may visit the children when he is in
Utah not more than one weekend/month when
not otherwise scheduled for a visitation
during that month excluding the summer
vacation period.
Tom may converse with the children at any
time they are with me (and vice versa) by
phone, e-mail or regular mail during
non-sleeping hours. The children's bedtime
will be defined as 9:00 p.m. in whichever
time zone they are located.
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The second half of the plan is entitled, "The proposed
schedule for the remainder of 1999 through the 2000 school year
. . . ." 4 Although the schedule is, on its face, limited to a
4
The second half of the plan provided the following:
June 28 through July 23, 1999 – boys with
Tom.
July 24 through August 20, 1999 – boys with
Katherine.
August 21 through September 3, 1999 (after
school) – boys with Katherine for school.
***Start of school is August 25, 1999***
September 3 (after school) through September
6, 1999 – boys with Tom for Labor Day
weekend.
September 6 through October 6, 1999 (after
school) -- boys with Katherine for school.
October 6 (after school) through October 10,
1999 – boys with Tom for long weekend
(school out on 7th and 8th for UEA).
October 10 through October 28, 1999 (after
school) – boys with Katherine for school.
October 30, 1999 through December 21, 1999
(after school) – boys with Katherine for
school and Thanksgiving holiday since 1999
is odd year.
December 21 (after school) through December
26, 1999 – boys with Tom for Christmas
vacation (boys with Tom for Christmas since
1999 is an odd year).
December 26, 1999 through January 14 (after
school), 2000 – boys with Katherine for
second half of Christmas vacation and
school.
January 14 (after school) through January
17, 2000 – boys with Tom for long weekend
(school out on 17th for Human Rights
Holiday).
January 17 through February 18 (after
school), 2000 – boys with Katherine for
school and one teacher in-service day off
from school on January 21, 2000.
February 18 (after school) through February
21, 2000 – boys with Tom for long weekend
(school out on 21st for President's Day).
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single school year, beginning and ending with summer visitation,
the trial court made it effective for subsequent years until
changed by court order.
In this section of the plan, as incorporated into the
decree, specific dates for the children's visitation with each
parent were set forth; the division of the summer period for
visitation by date was specified, as were the Christmas and
Easter breaks. All the remaining dates in the adopted schedule
refer to weekend visitation. In no instance did the specific
schedule set forth visitation with the father in Virginia on
more than one weekend per month, and in every instance, the once
monthly visitation with father was set on a weekend in which the
children had at least one extra day off from school. In
addition, no long weekend visitation was scheduled in those
February 21 through March 14 (after school),
2000 – boys with Katherine for school.
March 14 (after school) through March 17,
2000 – boys with Tom for long weekend
(school out on 17th for teacher in-service).
March 17 through April 20 (after school),
2000 – boys with Katherine for school.
April 20 (after school) through April 30,
2000 – boys with Tom for Easter break.
April 30 through May 26 (after school), 2000
– boys with Katherine for school.
May 26 (after school) through May 29, 2000 –
boys with Tom for Memorial Day Weekend.
May 29 through June 6, 2000 – boys with
Katherine for school.
June 6 through first half of summer – boys
with Katherine for summer vacation.
Second half of summer – boys with Tom.
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months in which an extended holiday visitation was planned such
as Christmas, Easter, and summer vacation.
The majority opinion fails to assign any meaning to the
specific schedule set forth in the parties' agreement, noting
that the specific schedule was for one school year only and was
not intended to govern in subsequent years. The conclusion
ignores the trial court's specific order, however, that the
plan, both its general and specific provisions, was to govern he
parties' conduct from the date of the order until modified by
the court. The analysis also fails to explain why the parties
who, after purportedly agreeing to visitation on every extended
weekend of the school year, at the same time implement, by
agreement, a schedule which defines weekend visitation in a far
more limited way.
The custody provisions are set forth in the court order in
paragraph 2A which addresses visitation before June 6, 2000, and
paragraph 2B which addresses visitation after June 6, 2000. The
majority reasons that this differentiation of periods
establishes the court's intent that the specific schedule set
forth in the Plan for the 1999–2000 school year is not to govern
the parties' visitation schedule in subsequent years. 5 The
"differentiation" reflected in sections 2A and 2B, however, is
5
The majority acknowledges that, "the specific provisions
for the 1999-2000 school year likely override the general
provisions of the Custody Orders as to that year . . . ."
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only with respect to summer visitation and the additional right
accorded to each parent to exercise visitation when the children
are visiting with the other parent. 6 The Proposed Access Plan,
with both its general provisions and specific schedule, is
otherwise adopted in its entirety and without modification by
the court.
In short, the majority opinion fails to construe the
parties' agreement as a whole and confines itself to
interpreting the general phrase which states that father is "to
have children over the extended weekends throughout the school
year." In so doing, it addresses the general provision
regarding visitation outside the context of the entire agreement
and thereby finds the import of the phrase clear and requiring
no interpretation. However, when read together with the
specific visitation schedule that follows, as rules governing
the construction of written documents require, the apparent
clarity is dispelled, and the expression of the parties' intent
becomes manifestly inconsistent.
To properly interpret this document, the facially
inconsistent general provisions must be reconciled with the
6
In paragraph 2B, for example, the father is awarded
enlarged visitation in the summer; instead of sharing the summer
period equally with the mother, beginning in the summer of 2001,
father is awarded visitation for the entire summer with the
exception of a short period after school ends and before it
begins in the fall.
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specific. See Seward, 161 Va. at 625-26, 171 S.E. at 659. 7
Furthermore, in reconciling provisions, any apparent
inconsistency between a clause that is general and broadly
inclusive in character, and one that is more specific in
character should be resolved in favor of the latter. Chantilly,
6 Va. App. at 294, 369 S.E.2d at 445; see also Bott, 177 Va. at
339, 14 S.E.2d at 374-75. Applying the relevant principles of
law in this case would result in affirming both the reasoning
and the conclusion of the trial court.
Finally, I note that adherence to the visitation schedule
as interpreted by the majority, would, at certain times of the
school year, require the children to travel from Utah to
Virginia, two or three times in one month, a schedule which
improperly imposes unreasonable burdens on the children and
their school year schedule. See Pettibone Wood Mfg. Co. v.
Pioneer Constr. Co., 203 Va. 152, 157, 122 S.E.2d 885, 889
(1961) (construction of an agreement should be reasonable and
just).
In short, I find that the parties themselves defined the
term, "extended weekend" by setting forth a specific schedule
7
The inconsistency arises by virtue of the fact that the
former may be interpreted as granting husband from the very
inception of his visitation schedule as ordered in the court's
decree every extended weekend in the school year irrespective of
the number of extended weekends falling within any one month;
under the latter specific provision, the husband's visitation is
limited to no more than one time each month and coincident with
an extended weekend.
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implementing the general visitation plan in their agreement. I
further find that the trial court did not err in its
interpretation of the agreement. It is both reasonable and just
and avoids the undue burden on the children that inheres in
husband's proposed interpretation. 8 I would affirm.
8
In an earlier proceeding brought before the court on
husband's rule to show cause, a similar interpretation of the
agreement language was obtained. In that proceeding the husband
asked the court to hold wife in contempt on the ground, inter
alia, that she had deprived him of one of the extended weekends
intended under the agreement. The weekend in question was a
weekend not delineated in the specific schedule set forth in the
decree, although it was a "long" weekend. However, it was one
of two "long" weekends falling in the month of October, the
first having been designated as the extended weekend for
visitation with husband. The court dismissed the rule, finding
none of the allegations had been proved, including the one
premised on husband's asserted interpretation of the terms
"extended" weekend.
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